DISTRICT COURT OF QUEENSLAND
CITATION:
So & Ors v Comptroller-General of Customs [2015] QDC 334
PARTIES:
CHI HO SO
&JASPREET SINGH JOHAL
&
LUN SHING YIP
(appellants)
v
COMPTROLLER-GENERAL OF CUSTOMS
(respondent)
FILE NO/S:
BD 1655/2015
1656/2015
1657/2015
DIVISION:
Criminal
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court, Brisbane
DELIVERED ON:
18 December 2015
DELIVERED AT:
Brisbane
HEARING DATE:
4 December 2015
JUDGE:
Smith DCJA
ORDER:
1. The appeals are allowed.
2. The orders made in respect of each appellant in the Magistrates Court on 22 April 2015 are varied to the extent that orders for condemnation of the Rolex watches are set aside, but otherwise the orders are confirmed.
3. I will hear the parties as to costs.
CATCHWORDS:
CRIMINAL LAW- JUDGMENT AND PUNISHMENT- FORFEITURE AND CONDEMNATION- should a condemnation order have been made for breaches of the Customs Act 1901 (Cth)
TAXES AND DUTIES- CUSTOMS AND EXCISE- whether condemnation order of forfeited goods should have been made
Acts Interpretation Act 1901 (Cth) s 15AA
Crimes Act 1914 (Cth) ss 4AA, 16A
Customs Act 1901 (Cth) ss 183UA, 203, 205, 205B, 205C, 205D, 205G, 208D, 229, 234, 237, 239, 245
Customs Tariff Act 1995 (Cth) Schedule 3, Chapters 71 and 91
Justices Act 1886 (Q) ss 222, 223, 225
Allesch v Maunz (2000) 203 CLR 172
Bert Needham Automative Co Pty Ltd v Federal Commissioner of Taxation (1976) 10 ALR 501
Blackell v Red Dial Holdings Pty Ltd and ors [2004] WASC 141
Burton v Honan (1952) 86 CLR 169
CEO of Customs v Coulton [2005] NSWSC 869
Commissioner of Taxation v Cocaj and Anor [2004] 2 Qd R 488; QCA 69
Commissioner of Australian Federal Police v Craven (1989) 20 FCR 547
De Keyser v British Railway Traffic and Electric Co Ltd [1936] 1 KB 224
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503
Forbes v Traders Finance Corporation Ltd (1971) 126 CLR 429
Hayes v Weller (No 2) (1988) 50 SASR 182
Hayes v Weller (1988) 50 SASR 136
Johnson v R (2004) 205 ALR 346
L. Vogel and Son Pty Ltd v Anderson (1968) 120 CLR 157
Lanham v Brake (1984) 52 ALR 351
Little’s Victory Cab Co Pty Ltd v Caroll [1948] VLR 249
Murphy v Farmer (1988) 165 CLR 19
Olbers Co Ltd v Commonwealth (2004) 136 FCR 67
Pettitt v Dunkley [1971] NSWLR 376
R v Kalache (2000) 111 A Crim R 152
R v Stanbouli (2003) 141 A Crim R 531
Re Director of Prosecutions; ex parte Lawler and Anor (1994) 179 CLR 270
Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Stocks v R (2000) 113 A Crim R 131
Teelow v Commissioner of Police [2009] 2 Qd R 489
Toy Centre Agencies v Spencer and others (1983) 46 ALR 351
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- Case
- [2015] QDC 334
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was the interpretation and application of the statutory criteria for making a condemnation order under the Customs Act. Specifically, the court had to determine whether the primary judge had correctly exercised the discretion to order condemnation of the appellants' goods, and if not, whether the orders should be set aside. The appellants argued that the primary judge had failed to consider the appropriate criteria for making a condemnation order, as set out in section 205 of the Customs Act. They contended that the primary judge should have considered whether the imposition of a penalty was sufficient to achieve the purposes of the Act, and whether condemnation was necessary in all the circumstances.
The court held that the primary judge had indeed erred in making the condemnation orders. The primary judge had failed to consider whether a penalty was sufficient to achieve the purposes of the Customs Act, and had not adequately considered the circumstances of the case. The court noted that the primary judge had made a finding of guilt, but had not gone on to consider the appropriate criteria for making a condemnation order. The court held that the primary judge's failure to consider the appropriate criteria was a jurisdictional error, and that the condemnation orders were therefore invalid. The appeals were allowed, and the orders for condemnation of the Rolex watches were set aside. However, the orders confirming the appellants' convictions were otherwise confirmed. The court will hear the parties as to costs.
Orders
Orders of the court
1. The appeals are allowed.
2. The orders made in respect of each appellant in the Magistrates Court on 22 April 2015 are varied to the extent that orders for condemnation of the Rolex watches are set aside, but otherwise the orders are confirmed.
3. I will hear the parties as to costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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